In this action to recover damages for personal injuries caused by burning gasoline, the facts are somewhat unusual and the question of law involved not free from difficulty. In order that we might get the fullest views from both sides we have heard oral argument on two occasions. The appeal is by defendant from the refusal of the trial court to enter judgment in its favor, notwithstanding a verdict for plaintiff.
Plaintiff was employed as a tank truck driver and salesman by an oil company. Defendant's employee, upon whose alleged-to-be negligent act liability in damages upon defendant is sought to be fixed, was employed by it as a truck driver.
Defendant is a manufacturer of paper boxes. Outside its factory is maintained an under-the-surface gasoline tank, gasoline for which was supplied by plaintiff's employer. On the morning the event occurred which gives rise to this suit, plaintiff was engaged in delivering gasoline from a truck into the underground tank. This he accomplished by drawing the gasoline from the tanks on the truck into five gallon cans, carrying it to the underground tank and pouring it through a large funnel into the orifice of the tank which protruded above the surface of the ground. Because he poured it too fast, the gasoline spurted out of the orifice into the air and onto plaintiff's clothing. As this happened, according to plaintiff's story, defendant's employee, Weidner, came out of the factory for the purpose of signing a receipt for the gasoline, as he had done on other occasions, and, when ten feet from plaintiff, struck a match to light a cigarette, thus causing the gasoline fumes in the air to ignite, seriously burning plaintiff. This theory of what brought about the firing of the gasoline was denied by Weidner, who testified that he *Page 131 lit his cigarette in the garage adjoining the factory, before plaintiff drove up in the gasoline truck, in so doing violating a rule of his employer against smoking, that he was eighteen feet away from plaintiff when the gasoline ignited, and that the cause of its doing so was plaintiff's violently "yanking" the large funnel out of the orifice when the gasoline spurted up, thus causing friction and a resulting spark which set off the gasoline. For the purpose we are asked by defendant to accomplish, the entry of judgment in its favor, we accept plaintiff's version of what occurred.
We then have this situation: an employee of defendant, outside of its factory in the open air, being there for the purpose of signing a receipt in his employer's behalf, strikes a match to light a cigarette, with the result that the man delivering the gasoline is burned. Under this state of facts, is the employer liable in damages to the injured man? We think it would be conceded generally as a legal proposition, as it was at bar, that if there had been no gasoline present, and if in striking the match the flaming head had flown off and injured plaintiff, or if the cigarette had been thrown upon plaintiff and he had been injured, there could be no recovery, because with such acts the employer has nothing to do, they are not an incident of, or part of, or in furtherance of, and therefore not within the scope of, the employee's employment. Does the presence of the gasoline change the picture and the result so far as defendant is concerned? This is not a situation similar to one where the attendant at a garage, while engaged in putting gasoline into a customer's automobile, the better to see, would strike a match, in which case there might well be liability on his employer, because striking the match was concerned with and in aid and furtherance of the act the employee was hired to do. Here, however, in striking the match the servant was doing nothing in furtherance of or in connection with his employer's business. *Page 132
The difficulty we see, if we are to sustain the recovery, is that, in principle, we are going to fix a liability on employers that apparently has no limit. Thus an employer sends his employee to a store in which gasoline is kept to make a purchase, and the employee strikes a match to light a cigarette, with the result of igniting the gasoline and thereby causing destruction of the store. Is responsibility to be visited on his employer? If a farmer sends his employee to his neighbor's barn on a mission and as a result of the employee's striking a match to light his pipe, the inflammable contents of the barn is set afire and the barn destroyed, is the employer to be mulcted with damages? Approved recovery in this case would answer yes on principle in both instances.
The only filament which unites Weidner's act in lighting the match to his employer is that he was intending to sign a receipt for the gasoline. However, the delivery of the gasoline had not been completed and the receipt was not prepared when Weidner struck the match. Smoking was an act in no way connected with the business of his employer or with service to it. It was something done by Weidner for his own enjoyment and satisfaction. Had there been nothing in the case about signing the receipt, and had Weidner merely stepped out of the building to enjoy a smoke, and the accident had happened, it could not be successfully argued that his employer would be liable, nor do we think it can be with the element of the intended signing of the receipt in the case, because the striking of the match preliminary to smoking had nothing to do with the contemplated act to be performed for the employer.
In our view the best reasoned authorities support the conclusion reached by us. In Vadyak v. Lehigh New England R.R. Co., 318 Pa. 580, 179 A. 435, where the engineer on defendant's locomotive discharged steam upon the minor plaintiff as he was walking along a path close to the railroad tracks, frightening the boy *Page 133 and causing him, blinded by the vapors, to step into a depression and fall with his leg under the car wheels, which crushed it, we held there could be no recovery, because there was no suggestion that it was a necessary part of the engineer's duty to open the engine's cylinder cocks and discharge steam upon the boy, the whole implication of the evidence being that he released the steam in a spirit of mischief. We said (p. 581): "though this was done in the course of his employment, he was not within the scope of his employment. It was not an act the performance of which at that time and place was shown to be in any way in furtherance of the employer's business, but was done by the engineer on his own account . . . the act being solely a personal one of the engineer, outside the scope of his duty, the railroad company could not be held responsible for damages." So it may be said in this case. It was not a part of Weidner's duty to strike the match, or an act the performance of which was in any way in furtherance of his employer's business, but was done by him on his own account, solely a personal act, outside the scope of his duty and the service to his employer which he was about to perform by signing the receipt. Restatement, Agency, sec. 235, thus sums up the general principle: "An act of a servant is not within the scope of his employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed." In Tshudy v. Hubbs StoresCorp., 310 Pa. 285, 165 A. 238, we decided that where the manager of a store raises a knife which he had been using in the course of his work as if to throw it at a customer and the knife slips out of his hand, unintentionally injuring the customer, the action of the employee was his own, not within the scope of his employment and not incident to the authority granted and the employer was not liable to the person injured.
The courts, both in this country and in England, have generally refused recovery in an action against an *Page 134 employer, where injury was done to the person or property of a third person by a servant smoking, such an act being purely for the servant's own enjoyment and in no way in furtherance of the master's business.
One of the leading English cases is Williams v. Jones, 3 Hurlst. C. 256, 159 Eng. Reprint 528, where a carpenter, employed to work in a shed, after lighting his pipe with a shaving kindled at a match struck by a third person for the purpose of lighting his own pipe, dropped the burning shaving on the floor and caused the destruction of the building. It was held that his master was not liable. In affirming this decision on appeal in 3 Hurlst. C. 602, 159 Eng. Reprint 668, it was stated (p. 612): "If it could be said that the act of lighting a pipe of tobacco for the purpose of smoking it was in any way connected with the making of the signboard, which alone Davies was employed by the defendant to do, there would be no difficulty in saying the master would be liable; but we can see no such connection. It was not necessary that he should smoke in order to make the signboard, nor was the act of lighting the pipe in any way whatever for the benefit of his master, or in furtherance of the object of his employment. . . . In order to make the master liable the servant must not only have been negligent in using the shed, but in using it for the purposes of his master and in the course of his employment." Another carefully reasoned case very close on its facts to the one in hand is Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101,66 S.W.2d 997, decided by the Supreme Court of Tennessee in 1934. In that case defendant's servant came to the store where plaintiff was employed, to deliver gasoline. The store contained highly inflammable material and plaintiff's clothing was covered with it. Defendant's servant was using the telephone in the office, calling his employer, and, while doing so, lighted a cigarette and threw the match against plaintiff's clothing, causing it to ignite and severely burning him. In its opinion denying recovery the court *Page 135 said: "The defendant's servant entered the Brockwell store and took his position at the telephone in furtherance of his service, and, was to that extent acting within the scope of his employment. But the act of lighting the cigarette was not incident to the telephoning and had no relation to it. It did not render the act of telephoning hazardous, nor did it create any causal relation between the service he was employed to render the defendant and the injury sustained by the plaintiff."
A telephone repair man in Adams v. Southern Bell Telephone Telegraph Co., 295 Fed. 586, who was sent to the home of plaintiff to repair a telephone, while there emptied his pipe over the porch rail. A short time after the house burned down. It was held that defendant was not liable for the negligence alleged, as the repair man was not acting within the scope of his employment. It was decided in Yore v. Pacific Gas Elec.Co., 99 Cal. App. 81, 277 P. 878, that the habit of smoking on the part of defendant's employees engaged in setting electric power poles and their careless tossing of cigarette stumps or burning matches into dry grass or inflammable material where they were working were not acts within the scope of their employment, and that an employer is not liable for damages resulting from fire started by an employee merely to serve his own pleasure or purpose, where the acts have no connection with the duties of his employment. In Feeney v.Standard Oil Co., 58 Cal. App. 587, 209 P. 85, the Court of Appeals of California had before it the circumstance that an employee of the oil company spilled gasoline on the cement floor of a garage to which he was delivering it. After completing delivery of the gasoline, the employee waited around for sometime engaging in conversation with others in the building and while so waiting lighted a cigarette and negligently dropped the match into the gasoline on the floor, causing the destruction of the building. The court determined that defendant was not responsible for his servant's negligent act in dropping *Page 136 the lighted match into the gasoline, because the lighting of the cigarette was no part of the transaction of the defendant's business but an independent act for the employee's personal enjoyment, and, while it occurred during the time of his transaction of defendant's business, it was no part thereof and not in the course of his employment.
In Morier v. St. Paul, M. M. Ry. Co., 31 Minn. 351,17 N.W. 952, where workmen on the right of way of a railroad kindled a fire for the purpose of warming their coffee and the fire spread, causing damage, it was held that the railroad company was not liable, because in kindling the fire to warm their meal, the men were not acting in the course of or within the scope of their employment. It was there said, speaking through MITCHELL, J.: "If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master, protempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended." The facts in that case were duplicated in Ireton v. Atchison, T. S. F. Ry. Co.,96 Kan. 480, 152 P. 625, and the ruling was the same. Another case denying an employer's liability for an injury done to the property of a third person by the act of an employee in smoking is Heard v. Flannagan, 10 Vict. L. R. Law 1.
There is a type of cases, such as Keyser Canning Co. v. KlotsThrowing Co., 94 W. Va. 346, 118 S.E. 521; Triplett v. WesternPublic Service Co., 128 Neb. 835, 260 N.W. 387; Palmer v. KeeneForestry Assn., 80 N.H. 68, 112 A. 798, in which liability of an employer was sustained because of evidence which showed that the employer had knowledge of the propensity of his servants to smoke, which habit they were likely to indulge in while at work. The question in these cases was not whether the men in smoking were acting within the scope of their employment but whether the doing *Page 137 of the act was to be reasonably apprehended by defendants. In the present case the record is devoid of any evidence which would charge the defendant with knowledge that Weidner was in the habit of smoking near or around the intake pipe of the gasoline tank, and, therefore these cases have no application to the controversy.
Another class of cases in which recovery has been allowed are those in which the employee is in possession of an inflammable article, and is controlling it for his employer's benefit. This was the situation presented in Jefferson v. Derbyshire Farmers,Ltd. [1921], 2 K. B. 281. There an employee of a garage keeper was drawing motor spirits from a drum into a tin, and, while doing so struck a match to light a cigarette, and then threw it on the floor, causing oil thereon to ignite and consume the garage. The court in that case did not consider whether the act of throwing the lighted match on the floor was within the scope of the servant's employment, but placed liability on the ground that the servant was under an obligation to empty the motor spirits into the tins, and to do so while smoking was not doing it with reasonable care. A similar situation to that in theJefferson case was presented in Maloney Tank Mfg. Co. v.Mid-Continent Petroleum Corp., 49 Fed. (2) 146, where the employee at the time was engaged in demolishing gas tanks, where danger from fire was inherent in the situation if smoking occurred, as the employees knew, and in Wood v. Saunders,228 A.D. 69, 238 N.Y. S. 571, where an employee of a filling station, while putting gasoline into the automobile of a customer, flipped a lighted cigarette over the open tank and caused the fire.
Schroeder v. Gulf Refining Co., 300 Pa. 397, 150 A. 633, cited by appellant, exhibits facts so different from those at bar that it has no real bearing on the point we are considering. There, the driver of a gasoline tank truck, who supplied plaintiff with gasoline, went into the cellar of plaintiff's house, unscrewed the cap of the *Page 138 gasoline tank, and ran into it more gallons than were required to fill it, with the result the contents overflowed and ran upon the street. Employees of a telephone company, using a lighted blow torch were in the vicinity, and the fumes from the gasoline in the street reached the blow torch and an explosion followed, destroying plaintiff's property. It was held, under these circumstances, that the driver of the truck, an employee of the defendant, who was in charge of its regular delivery service, was acting within the scope of his employment, as he undoubtedly was, and therefore that his employer was liable. The discussion in that case in many respects supports the position we are now taking, when related to the facts in the pending case. Allen v. Posternock, 107 Pa. Super. 332,163 A. 336, much relied on by appellee, was a case in which the patron of a beauty shop had inflammable materials placed on her head by an attendant, who lit a cigarette with a match which he waved back and forth to extinguish, in so doing it came in contact with the materials on plaintiff's head, igniting them and burning her. The defendant was held liable, because he was present and did not remonstrate with the attendant and thus made the attendant's act his own. The facts in that case take it completely out of line with the one now before us, because in the pending case the master knew nothing of the servant's act.
A review of all the authorities called to our attention by the briefs and by our own research and a mature consideration of the problem before us has brought conviction to our minds that recovery should not be allowed.
Judgment reversed and entered for defendant.